Legalism in Chinese Philosophy

Legalism is a popular—albeit quite inaccurate—designation
of an intellectual current that gained considerable popularity in the
latter half of the Warring States period (Zhanguo, 453–221 BCE).
Legalists were political realists who sought to attain a “rich
state and a powerful army” and to ensure domestic stability in
an age marked by intense inter- and intra-state competition. They
believed that human beings—commoners and elites alike—will
forever remain selfish and covetous of riches and fame, and one should
not expect them to behave morally. Rather, a viable sociopolitical
system should allow individuals to pursue their selfish interests
exclusively in ways that benefit the state, viz. agriculture and
warfare. Parallel to this, a proper administrative system should allow
officials to benefit from ranks and emoluments, but also prevent them
from subverting the ruler’s power. Both systems are unconcerned
with individual morality of the rulers and the ruled; rather they
should be based on impersonal norms and standards: laws,
administrative regulations, clearly defined rules of promotion and
demotion, and the like.

Legalist thinkers contributed greatly to the formation of
China’s empire both on the theoretical level and as political
practitioners; and many of their ideas continued to be employed
throughout China’s history. Yet their derisive views of
moralizing discourse of their rivals, their haughty stance toward
fellow intellectuals, and their pronouncedly anti-ministerial rhetoric
all gained them immense dislike among the imperial literati. From
China’s second imperial dynasty, the Han (206/202 BCE–220
CE) on, the prestige of Legalism declined; only a few texts associated
with this current survived intact; and even in the modern period,
notwithstanding sporadic outbursts of interest in Legalism, this
current has not received adequate scholarly attention.

The term “Legalist school” (fa jia
法家) is ubiquitous in studies of early Chinese political
philosophy. Despite manifold criticisms of its inaccuracy (e.g.,
Goldin 2011), the term may still be usefully employed, as long as two
major points are taken into account. First, Legalists were not a
self-aware and organized intellectual current; rather the name was
coined as a post-factum categorization of certain thinkers and texts,
and its primary function before the twentieth century was that of a
bibliographical category in imperial libraries. Therefore, the
identification of any thinker or text as “Legalist” will
forever remain arbitrary; the term may be used as a heuristic
convention but should not be employed (pace Creel 1974) as an
analytical device. Second, “Legalism” is a problematic
name. The Chinese term fa jia is already misleading, because
it inadvertently reduces the rich intellectual content of this current
to a single keyword, fa. “Legalism” is a doubly
misleading English translation, because the semantic field of the term
fa 法 is much broader than “law”; it refers
also to methods, standards, impersonal regulations and the like (Creel
1974: 147–149; Goldin 2011). It is incongruent, then, to discuss
the fa jia within the context of the Occidental notion of
“the rule of law,” as was popular in early modern Chinese
scholarship (e.g., Hsiao 1979: 442–446) and as is sometimes done
even nowadays (Fu Zhengyuan 1996: 158–161). If these intrinsic
inaccuracies of the term “Legalism” are borne in mind, it
can be employed—as in what follows—merely for heuristic
convenience. The term is simply so widespread in scholarly literature
that replacing it with a new designation will just further confuse the
readers.

Although the term “Legalism” was coined only during the
Han 漢dynasty (206/202 BCE-220 CE), its roots—or more
precisely the idea of grouping together several thinkers who will be
eventually dubbed “Legalists”—can be traced already
to Han Fei 韓非 (d. 233 BCE), who is often considered the
most significant representative of this intellectual current. In
chapter 43, “Defining the Standards” (“Ding
fa” 定法) of Han Feizi
韓非子, the thinker presents himself as a
synthesizer and improver of the ideas of two of his predecessors,
Shang Yang 商鞅 (d. 338 BCE) and Shen Buhai
申不害 (d. 337 BCE) (Han Feizi 43:
397–400). Pairing Shen Buhai and Shang Yang, and adding Han Fei
himself to them became common from the early Han dynasty (see, e.g.
Huainanzi 6: 230; 11:423; 20: 833). The historian Sima Qian
司馬遷 (ca. 145–90 BCE) identified these three
thinkers as adherents of the teaching of “performance and
title” (xing ming 刑名) (Shiji 62:
2146; 68: 2227; translation borrowed from Goldin 2013: 8). This term
was synonymous to the later fa jia (Creel 1974: 140).

The first to use the term fa jia was Sima Qian’s
father, Sima Tan 司馬談 (d. 110 BCE). In an essay on
the “essence of the six schools of thought,” Sima Tan
notices that fa jia are “strict and have little
kindness,” and “do not distinguish between kin and
stranger, nor differentiate between noble and base: everything is
determined by the standard (or law, fa).” Sima Tan
criticized the Legalists’ approach as “a one-time policy
that could not be constantly applied,” but also hailed the
fa jia for “honoring rulers and derogating subjects,
and clearly distinguishing offices so that no one can overstep [his
responsibilities]” (Shiji 130: 3289–3291; for
translations cf. Smith 2003: 141; Goldin 2011: 89). A century later
the bibliographical category of fa jia was created. The Han
librarian Liu Xiang 劉向 (79–8 BCE) identified ten
texts in the Han imperial library as belonging to fa jia
(Han shu 30: 1735). Thenceforth “Legalist school”
remained a major category of imperial book catalogues. Since the early
20th century this term has come to be widely used for
classification and analysis of early Chinese thought.

Of the ten “Legalist” texts in the Han imperial catalogue,
six ceased circulating more than a millennium ago; two arrived at our
days relatively intact, and of two others only a few fragments
survived vicissitudes of time. The earliest (in terms of its
composition) surviving text is the Book of Lord Shang
(Shang jun shu 商君書), attributed to Shang
Yang (aka Gongsun Yang 公孫鞅 or Lord Shang/Lord of
Shang 商君), a major reformer who orchestrated the rise of
the state of Qin 秦 to the position of a leading power of the
Chinese world. In the process of transmission, the book lost at least
five chapters; a few others had been badly damaged, becoming barely
legible. Since the late 18th century efforts have been made
to prepare a critical edition of the text and amend its corrupted
parts; yet more than two centuries passed before the comprehensive
critical edition was published (Zhang Jue 2012). The text is highly
heterogeneous in terms of its composition: some chapters were likely
penned by Shang Yang himself; others may come from the hand of his
immediate disciples and followers, but a few other were written
decades and even more than a century after his death (Pines 2016a).
This said, the text presents a relatively coherent ideological vision,
and it is likely that it reflects intellectual evolution of what Zheng
Liangshu (1989) dubbed Shang Yang’s “intellectual
current” (xuepai 學派).

The second surviving text, Han Feizi
韓非子, is attributed to Han Fei, a scion of the
ruling family from the state of Hán 韓 (not to be
confused with the Hàn 漢 dynasty), a tragic figure who
was allegedly killed in the custody of the King of Qin, whom Han Fei
wanted to serve. Of all Legalist texts in the Han imperial catalogue,
the Han Feizi fared the best over the vicissitudes of time:
all of its 55 chapters attested in the Han catalog are still intact.
The issue of whether or not the entire book had been penned by Han Fei
is debatable: considerable differences among the chapters in terms of
style and mode of argumentation lead not a few scholars to suspect
that they come from different authors. On the other hand, the
differences may be explained as reflecting the process of Han
Fei’s intellectual maturation, or the need to adapt
argumentation to different audiences; and since most of the chapters
present a coherent outlook, it increases the likelihood that most of
them were indeed written by Han Fei (Goldin 2013). Overall, the
Han Feizi is considered as philosophically and literally more
engaging than the Book of Lord Shang, and it has been more
widely studied in China, Japan, and in the West.

Two other Legalist texts mentioned in the Han imperial catalog did not
survive intact, but lengthy quotations from them in the imperial
encyclopedia have allowed partial reconstruction of their content.
Shēnzi 申子 is attributed
to Shen Buhai, who acted as a chancellor of the state of Hán
韓 in the middle fourth century BCE, and who is credited with
major administrative improvement there. Of the original six chapters
fewer than three dozen fragments remain intact (Creel 1974). Another
text, Shènzi 慎子 is attributed
to Shen Dao 慎到 (fl. ca. 300 BCE), of whom very little is
known (it is even possible that the figure of Shen Dao a is conflation
of several personalities; see Xu Fuhong 2013: 2–8). Of original
42 chapters, seven survived (albeit in an incomplete form) in a
seventh-century CE encyclopedy; altogether over 120 surviving
fragments of the text are considered authentic (Thompson 1979; cf. Xu
Fuhong 2013). In what follows, to avoid confusion between
Shēnzi and
Shènzi, they will be referred to as works of
Shen Buhai and Shen Dao respectively.

The above four texts are the major repository of Legalist ideology.
Several other texts appear to be closely related to these in terms of
ideological outlook and vocabulary: of particular importance for
discussing Legalism are several chapters of a heterogeneous
miscellany, Guanzi 管子, which is nominally
attributed to another major reformer, Guan Zhong 管仲 (d.
645 BCE) from the state of Qi 齊, but which was in reality
produced between the fourth and the second centuries BCE. Of further
relevance for understanding Legalist thought are a few segments of
another multi-authored compilation, the
Lüshi chunqiu
呂氏春秋 (ca. 240 BCE), and memorials of the
man who is considered the architect of the Qin 秦 Empire
(221–207 BCE), Li Si 李斯 (d. 208 BCE) (for Li Si,
see Bodde 1938). In addition, many more texts and thinkers are at
times identified by scholars as “Legalist”; but since most
of these identifications are quite arbitrary they will not be
considered in the framework of the current
discussion.[1]

Legalism is just one of the many intellectual currents that flourished
in China during the three centuries prior to the imperial unification
of 221 BCE. This period, often identified as the age of the
“Hundred Schools” was exceptionally rich in terms of
political thought. The outburst of interest in political issues was
not accidental: it took place against the backdrop of a severe
systemic crisis. The end of the Springs-and-Autumns period (Chunqiu
春秋, 770–453 BCE) was marked by the progressive
disintegration of political structures in the Zhou 周 realm (the
then Chinese world). Gradually, the Zhou world became entangled in a
web of debilitating struggles among rival polities, between powerful
nobles and the lords within each polity, as well as among aristocratic
lineages and among rival branches within major lineages. By the fourth
century BCE, a degree of re-centralization in individual polities was
achieved, but interstate warfare further intensified, giving, in
retrospect, the new era an ominous name: the age of the Warring States
(Zhanguo 戰國, 453–221 BCE). As wars became ever
bloodier and more devastating, and with no adequate diplomatic means
to settle the conflicts in sight, most thinkers and statesmen came to
an understanding that unity of “All-under-Heaven”
(tianxia 天下) was the only means to attain peace
and stability (Pines 2000). How to bring this unity about and how to
“stabilize All-under-Heaven” became the central topic
addressed by competing thinkers. In the final account, the
Legalists’ ability to provide the most compelling answers to
this question became the singular source of their ideological
appeal.

Crises and bloodshed aside, the Warring States period was also an age
rife with opportunities for intellectually active individuals. It was
an exceptionally dynamic period, marked by novel departures and
profound changes in all walks of life. Politically, the loose
aristocratic entities of the Springs-and-Autumns period were replaced
by centralized and bureaucratized territorial states (Lewis 1999).
Economically, the introduction of iron utensils (Wagner 1993)
revolutionized agriculture, allowing higher yields, prompting the
development of wastelands, and bringing about demographic growth, as
well as accelerating urbanization and commercialization of the
economy. Militarily, new technologies, such as the crossbow, as well
as new forms of military organization, brought about the replacement
of aristocratic chariot-led armies by mass infantry armies staffed by
peasant conscripts, resulting in a radical increase in warfare’s
scale and complexity (Lewis 1999). And socially, the hereditary
aristocracy that dominated the Zhou world during much of the Bronze
Age (ca. 1500–400 BCE) was eclipsed by a much broader stratum of
shi 士 (sometimes translated as “men of
service”), who owed their position primarily to their abilities
rather than their pedigree (Pines 2013c). These profound changes
required new approaches to a variety of administrative, economic,
military, social, and ethical issues: old truths had to be
reconsidered or reinterpreted. For intellectuals eager to tackle a
variety of new questions—and particularly for the
Legalists—this was a golden age.

Each of the competing “schools of thought” sought ways to
improve the functioning of the state, to attain sociopolitical
stability, and to bring about peace under Heaven; yet among a variety
of answers those provided by the Legalists appear to be most
practical. This is not incidental: after all, some of the major
Legalist thinkers, most notably Shang Yang, were the leading reformers
of their age. Legalist thinkers were at the forefront of
administrative and sociopolitical innovation; they were the most ready
to dispense with bygone norms and paradigms; and they were more
pragmatic and result-oriented than most of their ideological rivals.
On the other hand, their dismissive attitude toward traditional
culture and toward moralizing discourse, as well as their highly
critical stance toward other members of educated elite, and their
pronounced anti-ministerial approach, earned them considerable enmity.
In the long term, Sima Tan’s observation seems correct: the
Legalists’ recipes were highly effective in the short run but
were much less attractive in the long term.

Legalism is at times compared with modern social sciences (Schwartz
1985), and this comparison grasps well some of its characteristics.
Angus C. Graham (1989: 269) notices that Legalists are the first
political philosophers in China “to start not from how society
ought to be but how it is.” Indeed, this was the most
practical-oriented of all preimperial intellectual currents. Its
proclaimed goal was to create “rich state and powerful
army” (fu guo qiang bing
富國強兵),[2]
which would be the precondition for future unification of the entire
subcelestial realm. The thinkers’ focus was on how to attain
this goal, and less on philosophical speculations. Consequently, their
writings are generally devoid of overarching moral considerations, or
conformity to divine will—topoi which recur in the
writings of the followers of Confucius 孔子 (551–479
BCE) and Mozi 墨子 (ca. 460–390 BCE). Cosmological
stipulations of political order, which became hugely popular after the
Laozi 老子 (fourth century BCE) are of slightly
higher importance for the Legalists than morality or religion: they
are referred to in some of Shen Buhai and Shen Dao’s fragments
and, more notably, in several chapters of the Han Feizi. Yet
these speculations are not essential for these thinkers’
arguments: hence, pace attempts to consider cosmological
digressions of Han Fei as foundations of his political philosophy
(Wang and Chang 1986), it would be more accurate to see them as
argumentative devices that were “not fully assimilated”
into Han Fei’s thought (Graham 1991: 285; cf. Goldin 2013:
14–18).[3]
Generally, Legalist thinkers display considerable philosophical
sophistication only when they need to justify their departures from
conventional approaches of other intellectual currents. In this regard
their views of historical evolution and of human nature are highly
engaging.

The Warring States period was an age of comprehensive sociopolitical
change, and thinkers of different intellectual affiliations had to
come to terms with this change. The majority tried to accommodate it
within the framework of the “changing with the times”
paradigm (Kern 2000: 170–174): namely, certain innovations and
modifications of existent policies are inevitable, but these do not
require a radical overhaul of the current sociopolitical system, and
do not undermine the usefulness of the past as a guideline for the
present. Legalists were much more resolute in their willingness to
dispense with traditional modes of rule, and they questioned the very
relevance of the past to the present. Their attack on supporters of
learning from the past was twofold. First, there was simply no uniform
model of orderly rule in the past to be emulated. Second, and more
substantially, society evolves, and this evolution turns behavioral
modes, institutions, and even values of the past obsolete.

The first and best-known argument in favor of dispensing with the past
models is presented in the first chapter of the Book of Lord
Shang. Shang Yang is cited saying: “there is no single way
to order the generation; to benefit the state, one need not imitate
antiquity” (Shang jun shu 1:4; Book of Lord Shang
1.4 ). Han Fei explains further: past models are irrelevant not
only because they were changing from time to time, but also because we
cannot verify exactly what they were. The way of the former paragons
is bitterly contested, and those who claim the authority of
antiquity—such as adherents of Confucius and Mozi—simply
cannot agree on the lessons of the past that are to be applied in the
present: “He who claims certain knowledge without examining the
issue is a fool; he who relies on things which are impossible to
ascertain is an impostor. It is therefore clear that those who rely on
former kings, and claim they can determine with certainty [the way of
the paragon legendary rulers] Yao and Shun, are either fools or
impostors” (Han Feizi 50: 457).

Yet having postulated the impossibility of learning from past models,
Shang Yang and Han Fei propose an alternative lesson that can be
learnt: that changing circumstances may require not a piecemeal but a
comprehensive readjustment of the sociopolitical system. To
demonstrate the magnitude of change in the past, both thinkers turn to
remotest antiquity, and trace how the state was formed. For instance,
Shang Yang depicts social evolution from primeval promiscuous life to
an incipient stratified society and then to a fully mature state with
laws, regulations, officials, and the power of coercion (Shang jun
shu 7: 51–53; Book of Lord Shang 7.1). At the earlier
stages of human history, the people could be constrained by moral
suasion; yet this was simply because that was the age of relative
abundance: “Formerly… the people cut trees and
slaughtered animals [for food]; the people were few, whereas trees and
animals plenty. … Men plowed to obtain food, women wove to
obtain clothing; [the ruler] used neither punishments nor regulations,
but there was order” (Shang jun shu 18: 107; Book
of Lord Shang 18.1). Han Fei echoes Shang Yang: in the remote
past “the people were few whereas goods were plenty; hence
people did not compete” (Han Feizi 49: 443). Now, this
age of primeval morality has gone forever. Both thinkers emphasize the
devastating impact of demographic growth on human mores.
“Nowadays, five children are not considered too many, and each
child also has five children; the grandfather is still alive, and he
already has twenty-five grandchildren. Therefore, the people are
plenty whereas commodities and goods are few; people work laboriously,
but provisions are scanty; hence the people compete” (Han
Feizi 49: 443). Under these new circumstances, moral norms are no
longer relevant; contention is the rule, and it can be quelled only
through coercion.

The evolutionary view of history and especially the emphasis that
economic conditions can alter moral values, distinguish the Legalists
critically from proponents of alternative models of state formation
(Pines 2013a). The Legalists imply that everything is changeable: as
socioeconomic conditions change, human behavior changes as well; and
this in turn requires adaptation of political institutions. Shang Yang
summarizes:

When the affairs of the world change, one should implement a different
Way. … Therefore, it is said: “When the people are
ignorant, one can become monarch through knowledge; when the
generation is knowledgeable, one can become monarch through
force” (Shang jun shu 7: 53; Book of Lord
Shang 7.1–7.2).

The last phrase represents the rationale behind Shang Yang’s
model of state formation. If radical restructuring of society was
legitimate in the past, so it is in the present. In the current
situation, when the people are “knowledgeable,” a powerful
state, which is able to coerce its subjects, is the only viable
solution. The Book of Lord Shang (but not Han Feizi)
allowed for the possibility that in the future the need for excessive
reliance on coercion would end and a milder, morality-driven political
structure would evolve, but these utopian digressions are of minor
importance in the text (Pines 2013a). What matters is the bottom line:
radical reforms were inevitable in the past; and they are inevitable
in the present.

The second pillar of Legalist political philosophy is their view of
human nature. Legalists eschew the discussion of whether or not human
badness or goodness are inborn, or whether or not all humans possess
fundamentally similar qualities. What matters for them is, first, that
the overwhelming majority of human beings are selfish and covetous;
second, that this situation cannot be changed through education or
self-cultivation; and, third, that human beings’ selfishness can
become an asset to the ruler rather than a threat. That “the
people follow after benefit as water flows downward” (Shang
jun shu 23:131; Book of Lord Shang 23.2) is a given: the
task is to allow the people to satisfy their desire for glory and
riches in a way that will accord with, rather than contradict, the
state’s needs. Shang Yang explains how to attain this:

wherever the name (repute) and benefit meet, the people will go in
this direction.… Farming is what the people consider bitter;
war is what the people consider dangerous. Yet they brave what they
consider bitter and perform what they consider dangerous because of
the calculation [of a name and benefit]. … When benefits come
from land, the people exhaust their strength; when the name comes from
war, the people are ready to die (Shang jun shu 6:
45–46; Book of Lord Shang 6.4–6.5).

The people covet wealth and fame; they are afraid of punishments: this
is their basic disposition (qing 情). This disposition
is not to be altered but to be properly understood and then
manipulated: “When a law is established without investigating
the people’s disposition, it will not succeed” (Shang
jun shu 8: 63; Book of Lord Shang 8.3). To direct the
populace toward the pursuits which benefit the state, namely
agriculture and warfare, even though they consider these “bitter
and dangerous,” one should establish a combination of positive
and negative incentives. The entire sociopolitical system advocated by
Shang Yang can be seen as the realization of this recommendation
(Pines 2016b).

The Legalists’ view of the people as covetous and selfish was
not exceptional to this intellectual current: it was shared, among
others, by as significant a Confucian thinker as Xunzi
荀子 (ca. 310–230 BCE) and is evident in many other
texts (Sato 2013). Yet in marked distinction from Xunzi and from other
Confucian thinkers, the Legalists dismissed the possibility that the
elite—rulers and ministers alike—would be able to overcome
their selfishness. The topic of the ruler’s quality will be
discussed below; here, suffice it to focus on that of the ministers.
For thinkers from the entire spectrum of Confucian thought, it was
axiomatic that the government should be staffed by morally upright
“noble men” who would serve out of commitment to the ruler
above and the people below. For the Legalists, it was equally
axiomatic that this cannot be the case. Shen Dao explains:

Among the people, everybody acts for himself. If you [try to] alter
them and cause them to act for you, then there will be none whom you
can attain and employ. … In circumstances where people are not
able to act in their own interests, those above will not employ them.
Employ the people for their own [interests], do not employ them for
your sake: then there will be none whom you cannot make use of
(Shenzi, 24–25; Harris 2016: 112).

Shen Dao dismisses the possibility that the ministers will be driven
by moral commitment; on the contrary, such exceptional individuals
should not be employed at all. This sentiment recurs in Han
Feizi, a text that expresses with utmost clarity its belief that
every member of the elite—like any member of
society—pursues his own interests (cf. Goldin 2005: 58–65;
2013). Morally upright officials do exist, but these are exceptional
individuals: “one cannot find even a dozen upright and
trustworthy men of service (shi 士), while the
officials within the boundaries are counted in hundreds. If one cannot
employ but upright and trustworthy men of service, then there will be
not enough people to fill in the offices” (Han Feizi
49: 451). This awareness is the source of the thinker’s great
concern with regard to the ongoing and irresolvable power struggle
between the ruler and the members of his entourage (see below), and is
also a source of Han Fei’s (and other Legalists’)
insistence on the priority of impersonal norms and regulations in
dealing with the ruler-minister relations. Proper administrative
system should not be based on trust and respect for ministers; rather
they should be tightly controlled. A political system that presupposes
human selfishness is the only viable political system.

One of the (in)famous controversial dictums in the Book of Lord
Shang states: “When the people are weak, the state is
strong; hence the state that possesses the Way devotes itself to
weakening the people” (Shang jun shu 20: 121; Book
of Lord Shang 20.1). Elsewhere, the text specifies:

In the past, those who were able to regulate All-under-Heaven first
had to regulate their own people; those who were able to overcome the
enemy had first to overcome their own people. The root of overcoming
the people is controlling the people as the metalworker controls metal
and the potter clay. When the roots are not firm, the people will be
like flying birds and running animals: Who will then be able to
regulate them? The root of the people is law. Hence, those who excel
at orderly rule block the people with law; then a [good] name and
lands can be attained. (Shang jun shu 18: 107; Book of
Lord Shang 18.2)

These and many similar sayings explain Shang Yang’s image as a
“people-basher.” No other thinker was as explicit as he in
pointing at the persistent contradiction between society (“the
people”) and the state. The people’s intrinsic selfishness
constantly endangers social order; and to safeguard this order, the
ruler should resolutely rein in his subjects through the law
(fa 法 in this context refers primarily to punitive
laws). The state should tightly control its subjects: the system of
mandatory registration of the population and creation of mutual
responsibility groups among the populace will ensure that every crime
is denounced and the criminal—particularly those who abscond
from the battlefield—will know that “there is no place to
flee from the army ranks, and migrants can find no refuge.”
(Shang jun shu 18: 108;Shang jun shu 18.3).
Moreover, to overawe the people, the text advocates inflicting heavy
punishments for even petty offenses, as only then will the people be
sufficiently scared as to behave properly. Eventually, harsh
punishments will eliminate the very need for punishments:

To prevent wrongdoing and stop transgressions, nothing is better than
making punishments heavy. When punishments are heavy and [criminals]
are inevitably captured, then the people dare not try [to break the
law]. Hence, there are no penalized people in the state. When there
are no penalized people in the state, it is said, then:
“Clarifying punishments [means] no executions.” (Shang
jun shu 17: 101;Shang jun shu 17.3)

Due to above pronouncements, Shang Yang gained notoriety as an
advocate of oppression; but actually his attitude toward the people is
much more balanced than is often imagined. The Book of Lord
Shang frequently speaks of “loving/caring for the
people” (ai min 愛民) and “benefiting
the people” (li min 利民), echoing other
contemporaneous texts which proclaimed the people’s well-being
as the ultimate goal of policy-making (Pines 2009: 201–203). The
people are not just the potential enemy of the ruler: they are his
major asset. Without their hard labor in the fields or their bravery
on the battlefield, the state is doomed. Yet the people will not
embrace tilling and waging war just out of fear of coercion. A more
complex system is needed: one that will introduce attractive positive
incentives along with awe-inspiring negative ones. Shang Yang
explains:

Human beings have likes and dislikes; hence, the people can be ruled.
The ruler must investigate likes and dislikes. Likes and dislikes are
the root of rewards and penalties. The disposition of the people is to
like ranks and emoluments and to dislike punishments and penalties.
The ruler sets up the two in order to guide the people’s will and to
establish whatever he desires. (Shang jun shu 9: 65; Book
of Lord Shang 9.3)

Punishments and penalties can deter the people from misbehavior, but
to encourage them to do “whatever the ruler desires,”
positive incentives—“ranks and emoluments”—are
no less important. The ruler’s major goal, as Shang Yang
reiterates incessantly, is to turn his subjects into diligent farmers
and valiant soldiers. This can be attained only if engagement in these
“bitter and dangerous” occupations will be the exclusive
way to secure material riches and glory. This understanding stands at
the background of Shang Yang’s most celebrated reform: the
replacement of Qin’s traditional hereditary aristocratic order
with the new system of “ranks of merit.”

The system of 20 (initially fewer) “ranks of merit”
introduced by Shang Yang was one of the most daring acts of social
engineering in human history. This system became the cornerstone of
social life in Qin. The lowest ranks were distributed for military
achievements, particularly decapitating enemy soldiers, or could be
purchased in exchange for extra grain yields; successful rank-holders
could be incorporated into the military or civilian administration and
thereafter be promoted up the social ladder. Each rank granted its
holder economic, social, and legal privileges; and since the ranks
were not fully inheritable, the system generated considerable social
mobility (see details in Loewe 1960 and 2010; Pines et al. 2014:
24–26; Pines 2016b). The new system attempted to unify the
social, economic, and political hierarchy under the government’s
control, which in turn required the elimination of alternative avenues
of enhancing one’s socioeconomic and political status. This
latter concern is strongly pronounced throughout the Book of Lord
Shang:

The means whereby the sovereign encourages the people are offices and
ranks; the means by which the state prospers are agriculture and
warfare. Today the people seek offices and ranks, yet they are
attainable not through agriculture and warfare but through crafty
words and empty ways: this is called to exhaust the people.(Shang
jun shu 3: 20; Book of Lord Shang 3.1).

The text insists repeatedly that the only way to make agriculture and
warfare attractive is to prevent any alternative route toward
enrichment and empowerment. It specifies that “those who do not
work but eat, who do not fight but attain glory, who have no rank but
are respected, who have no emolument but are rich, who have no office
but lead—“these are called ‘villains’”
(Shang jun shu 18: 111; Book of Lord Shang 18.6).
Any group which tries to bypass engagement in agriculture and
warfare—be these merchants who amass riches without tilling or
talkative intellectuals who seek promotion without contributing to the
state economically or militarily—should be suppressed or at
least squeezed out of profits. Nothing—neither learning, nor
commerce, nor even artisanship—should distract the people from
farming and making war. The text summarizes:

Hence, my teaching causes those among the people who seek benefits to
gain them nowhere else but in tilling and those who want to avoid harm
to escape nowhere but to war. Within the borders, everyone among the
people first devotes himself to tilling and warfare and only then
obtains whatever pleases him. Hence, though the territory is small,
grain is plenty, and though the people are few, the army is powerful.
He who is able to implement these two within the borders will
accomplish the way of Hegemon and Monarch. (Shang jun shu 25:
139; Book of Lord Shang 25.5)

To rule and control the people effectively, the government should rely
on an extensive bureaucracy; but this bureaucracy in turn should be
properly staffed and tightly monitored. It is with this regard that
the Legalists made a lasting contribution to China’s
administrative thought and administrative practices. Their strongly
pronounced suspicion of scheming ministers and selfish officials was
conducive to the promulgation of impersonal means of recruitment,
promotion, demotion, and performance control. These means became
indispensable for China’s bureaucratic apparatus for millennia
to come (Creel 1974).

One of the primary issues that the rulers of the Warring States faced
was that of recruitment into government service. During the
aristocratic Springs-and-Autumns period, the overwhelming majority of
officials were scions of hereditary ministerial lineages; only
exceptionally could outsiders join the government. This situation
changed by the fifth century BCE, as aristocratic lineages were
largely eliminated in internecine struggles and members of lower
nobility—the so-called “men of service,”
shi 士—could advance up the ladder of
officialdom. It was then that the new meritocratic discourse of
“elevating the worthy” (shang xian
尚賢) proliferated and upward social mobility became
legitimate (Pines 2013c). Yet who were the “worthy” and
how to determine one’s worthiness was a matter of considerable
uncertainty and confusion. While certain texts presented highly
sophisticated ways of discerning the employee’s true worth
(Richter 2005), their recommendations required exceptional
perspicacity of an employer and were largely impractical. Instead, the
most popular way of recruitment was based on a notion of
“recognition” of one’s worth (Henry 1987): an
employee was recommended to the ruler (or to a high official),
interviewed, and then his worth was “recognized” and high
position assigned. This widespread practice was deeply resented by the
Legalists. The very idea of reliance on vague concept of
“worthiness” and on personal impression of the ruler as
the primary means of recruitment was in their eyes fundamentally
flawed, because it allowed manifold manipulations. Shang Yang explains
why “worthiness” based on one’s reputation is an
intrinsically problematic concept:

What the world calls a “worthy” is one who is defined as
upright; but those who define him as good and upright are his clique
(dang 黨). When you hear his words, you consider him
able; when you ask his partisans, they approve it. Hence, one is
ennobled before one has any merits; one is punished before one has
committed a crime. (Shang jun shu 25: 136–137; Book
of Lord Shang 25.1)

“Worthiness” is too vague and too prone to manipulation by
partisans to serve as an adequate means of promotion; and relying on
one’s reputation or on an interview with the ruler are equally
flawed methods. Similar views are echoed in Han Feizi and in
other Legalist texts, such as “Relying on Standards”
(“Ren fa” 任法) chapter of Guanzi
(Rickett 1998: 144–151). Shen Dao further warns the ruler that
if he decides on promotions and demotions on the basis of his personal
impression, this will cause inflated expectations or excessive
resentment among his servants:

When the ruler abandons the standard (fa 法) and relies
on himself to govern, then punishments and rewards, recruitment and
demotion all arise out of the ruler’s heart. If this is the
case, then even if rewards are appropriate, the expectations are
insatiable; even if the punishments are appropriate, lenience is
sought ceaselessly. If the ruler abandons the standard and relies on
his heart to decide upon the degree [of awards and punishments], then
identical merits will be rewarded differently, and identical crimes
will be punished differently. It is from this that resentment arises.
(Shenzi, 52; Harris 2016: 120)

Decisions on matters of promotion and demotion should never be based
on the ruler’s heart; not only because he can be misled and
manipulated by unscrupulous aides, but also because any
decision—even if correct one—which is not based on
impersonal standards will cause dissatisfaction among his underlings
(see more in Harris 2016: 31–34). An alternative will be a set of
clear impersonal rules that will regulate recruitment and promotion of
officials. For Shang Yang, recruitment will be based on the ranks of
merit. Han Fei remains doubtful about these: after all, why should
valiant soldiers who gained ranks of merit become good officials? Han
Fei himself does not solve the problem of initial recruitment but
develops ways to monitor subsequent promotion of an official:

Thus, as for the officials of an enlightened ruler: chief ministers
and chancellors must rise from among local officials; valiant generals
must rise from among the ranks. One who has merit should be awarded:
then ranks and emoluments are bountiful and they are ever more
encouraging; one who is promoted and ascends to higher positions, his
official responsibilities increase, and he performs his tasks ever
more orderly. When ranks and emoluments are great, while official
responsibilities are dealt with in an orderly way—this is the
Way of the Monarch. (Han Feizi 50: 460)

Promotion should be dissociated once and for all from the
ruler’s (or his ministers’) personal judgments. One should
simply check an incumbent’s performance on the lower level of
bureaucracy, and promote him to higher positions with ever more
responsibilities. This objective process of promotion according to
measurable and objective merits became one of the hallmarks of the
Chinese administrative system throughout the imperial era and
beyond.

Rewards and punishments (primarily promotion and demotion) are the
major handles through which the ruler has to control his officials.
But how to judge their performance? Here the Legalists put forward the
idea of xing ming 刑名: “performance and
title.” Although this compound is attested only in Han
Feizi, throughout the Former Han dynasty it was most commonly
identified with what we nowadays call “Legalism.” Han Fei
explains what he means by xing ming:

Performance and title refers to statements and tasks. The minister
presents his statement; the ruler assigns him tasks according to his
statement, and evaluates his merits exclusively according to the task.
When the merit is in accordance with the task, and the task is in
accordance with the statement, then [the minister] is awarded; when
the merit is not in accordance with the task, and the task is not in
accordance with the statement, then he is punished. (Han
Feizi 7: 40–41)

The proposed way of estimating the official’s performance is not
entirely reasonable (why punish a minister for over-performing?) but
at least it tries to establish firm criteria of evaluation, which in
this case are related to the minister’s own “bid”
(Goldin 2013: 8–10). The advantages are clear: the system will
prevent ministerial manipulations and will reaffirm the ruler’s
control over his officials. This latter point is of particular
importance to the Legalists. Various means through which the ruler
should monitor the ministers are named in Han Feizi and other
Legalist texts as “technique” (shu 術) or
“rules” (shù 數) (the meaning of
both terms may overlap: Creel 1974: 125–134; Yang 2010). Both
terms are similar to fa but are narrower in their meaning,
referring primarily to a variety of means through which the ruler
controls his officials. Han Fei claims that shu is the
hallmark of Shen Buhai’s ideas, and explains its meaning as
follows:

Technique is to give official positions in accordance with one’s
responsibility, to investigate reality in accordance with the name, to
hold the handles of death and life, to assess the abilities of every
minister. This is what the ruler should hold. (Han Feizi 43:
397)

This passage explains the general principles of Shen Buhai’s
“techniques” but does not detail how they functioned.
“Techniques” and “rules” are referred in
Legalist texts as the best means of preserving the ruler’s
control: the enlightened ruler relies on these, while the benighted
one in contrast casts these away and subsequently is misled by his
ministers’ delusive words and by persuaders’ inducements
(shui 說). Yet amid the strong emphasis on the power of
techniques, rules, laws, and regulations, we can discover the sober
realization that even these are not always enough, and that a perfect
administrative system simply cannot come into existence. Thus, in one
of the later chapters of the Book of Lord Shang it is
said:

Nowadays, [the ruler] relies on many officials and numerous clerks; to
monitor them he establishes assistants and supervisors. Assistants are
installed and supervisors are established to prohibit [officials] from
pursuing [personal] profit; yet assistants and supervisors also seek
profit, so how they will able to prohibit each other? (Shang jun
shu 24: 133; Book of Lord Shang 24.2)

This appears to be a rare insight concerning the administrative
system’s fundamental inability to monitor itself in the long
term; yet the observation does not lead to any radical alternatives to
the system of supervision over officials. The chapter simply reasserts
the superiority of techniques and rules over the ruler’s
personal intervention in policy-making and does not explain how these
would prevent the supervisors’ machinations. Insofar as
techniques and rules are implemented by self-interested—or
simply erring—human beings, the question remains: to what extent
can the impersonal mode of rule cure the intrinsic maladies of the
bureaucratic system (cf. Van Norden 2013)? This question remains one
of the major challenges to the Legalists’ legacy.

Not a few scholars consider Legalists in general and Han Fei in
particular as staunch theorists of “monarchic despotism”
(Hsiao 1979: 386). This evaluation should be qualified, though. What
distinguishes Han Fei and his ilk from other thinkers is neither his
insistence on the monarchic form of rule as singularly appropriate,
nor adoration of the sovereign’s authority; actually, on these
points the Legalists do not differ from most other intellectual
currents of their age (Pines 2009: 25–107). Rather, their
distinctiveness was in their pronounced anti-ministerial stance. This
stance is exemplified by the following saying of Shen Buhai:

Now the reason why a ruler builds lofty inner walls and outer walls,
looks carefully to the barring of doors and gates, is [to prepare
against] the coming of invaders and bandits. But one who murders the
ruler and takes his state does not necessarily climb over difficult
walls and batter in barred doors and gates. [He may be one of the
ministers, who] by limiting what the ruler sees and restricting what
the ruler hears, seizes his government and monopolizes his commands,
possesses his people and takes his state. (Creel 1974: 344,
translation modified)

This warning epitomizes what may be considered the major dividing line
between Legalists and their opponents. Despite their pronounced belief
in monarchic form of rule, most thinkers of the Warring States period
insisted that the monarch would never succeed without a worthy aide.
Their common desideratum was attaining harmonious relations between
the ministers and the rulers; not coincidentally, the common simile of
these relations was that of friends, i.e. of equals. Some thinkers
were even more assertive in their interpretation of a worthy minister
as the ruler’s de facto superior, a teacher and not just a
friend (Pines 2009: 163–172). One of the most radical
manifestations of this pro-ministerial mindset of the Warring States
era was the idea of abdication, according to which a good ruler may
consider yielding the throne to his meritorious aide (Allan 2016;
Pines 2005). For Legalists, in contrast, this very idea proved that
the pro-ministerial discourse of their rivals was usurpation in
disguise. Ministers should never be trusted: they are neither the
ruler’s friends, nor his teachers, but his bitter foes and
plotters, who should be checked and controlled rather than cherished
and empowered. This sober realization—promoted, ironically, by
the members of the ministerial stratum—added certain tragic
dimensions to the Legalists’ political theory.

Legalists shared the conviction of most other political theorists of
the Warring States period: stability and orderly rule in either the
individual state or “All-under-Heaven” can be attained
only under an omnipotent monarch. They added a few new dimensions to
this overarching monarchistic discourse. For instance, in Shang
Yang’s model of state formation, the establishment of the ruler
is presented—in contrast to Mozi (see the section on Political
Theory in the entry on
Mohism)—not
as a starting point, but as the crowning stage of sociopolitical
evolution, the final and singularly important step toward stability.
The ruler is the only person who represents common interests of the
polity (gong 公, “commonality,” actually is
an identical word to “the lord”; cf. Goldin 2013:
3–4). As such, his power is conceived not as the means of
personal enjoyment but as the common interest of his subjects. Shen
Dao elaborates:

In antiquity, the Son of Heaven was established and esteemed not in
order to benefit the single person. It is said: When All under Heaven
lacks the single esteemed [person], then there is no way to carry out
the principles [of orderly government, li 理]….
Hence the Son of Heaven is established for the sake of All under
Heaven, it is not that All under Heaven is established for the sake of
the Son of Heaven…. Even if the law is bad, it is better than
absence of laws; thereby the hearts of the people are unified.
(Shenzi, 16; Harris 2016: 110).

Shen Dao presents his political credo with rare clarity. A ruler is
crucial for the proper functioning of the political system; he is the
real foundation of political order, not a beneficiary but rather a
servant of humankind. Significantly, the ruler attains these blessed
results by the sheer fact of his existence and not due to his morality
or intelligence. As Shen Dao clearly states, bad laws are better than
a lawless situation, and we may infer that a bad ruler is better than
anarchy. What matters—as Shen Dao explains elsewhere—are
not the ruler’s individual qualities but his ability to preserve
his “positional power” (or “power of
authority,” shi 勢). As long as the ruler
preserves his power intact, i.e., by refraining from delegating it to
ministers and preserving the singularity of decision-making in his own
hands, the political system will act well. Otherwise, turmoil is
inevitable. Shen Dao warns:

When the Son of Heaven is established, he should not let the regional
lords doubt [his position]; when a lord is established, he should not
let nobles doubt [his position]; … Doubts bring commotion;
doubleness [of the sources of authority] brings contention,
intermingling brings mutual injury; harm is from sharing, not from
singularity (Shenzi, 47–48; Harris 2016: 118).

Shen Buhai echoes Shen Dao: “He who is a singular decision-maker
can become the sovereign of All under Heaven” (Creel 1974: 380,
translation modified).

Why is the singularity of the ruler’s position so important? It
is because by the sheer fact of his exclusive authority, the ruler is
able to arbitrate conflicts among his ministers and to preserve the
chain of command in his state, without which the state may collapse.
This explains also the Legalists’ emphasis on absolute obedience
to the ruler’s commands, epitomized by the dictum to punish a
minister who disobeyed commands even if the results of his actions
were successful (Guanzi 45: 913; Rickett 1998: 150).
Similarly, the above mentioned dictum in Han Feizi to punish
an over-performing minister may be understood in this context: fear of
a minister’s high ambitions and of his potential disobedience
outweighs other considerations. The ruler’s exclusivity and
omnipotence is the sine qua non of proper political order. Preserving
and strengthening his authority is the Legalists’ declared
political commitment.

The Legalists’ strong adherence to the principles of monarchism
is self-evident; but it is not free of manifold tensions and
contradictions. Those are fully epitomized in Han Fei’s thought.
Han Fei shared his predecessors’ view of the ruler as the pivot
of sociopolitical order, the sole guarantor of stability and
prosperity of his subjects; yet he was also bitterly aware of the
ruler’s inadequacy. The very fact that the monarch—unlike
his officials—owed his position to pedigree alone meant that
this position would more often than not be occupied by a mediocrity.
Multiple historical examples scattered throughout Han Feizi
unequivocally demonstrate how devastating the ruler’s ineptitude
could be (Graziani 2015). The intrinsic contradiction between an
institutionally infallible and humanly erring sovereign is the major
source of tension in the Han Feizi (Pines 2013b).

Thinkers of different ideological inclinations shared the sober
realization that a sovereign may be a mediocrity; yet for them this
problem was easily resolvable. Insofar as the ruler would be prudent
enough to entrust everyday affairs to a meritorious aide, he would be
able to continue enjoying absolute prestige, while practical matters
would be decided by worthy ministers (see, e.g., Xunzi 11:
223–224; Hutton 2014: 112–113). For Han Fei, though, this
solution is unacceptable. Time and again he warns the ruler that
nobody can be trusted: the ruler’s wife, his beloved concubine,
his eldest son and heir—all hope for his premature death because
this may secure their position. Threats come also from the
ruler’s brothers and cousins, from uncles and bedfellows, from
dwarfs and clowns who entertain him, from dancers in his court; and,
of course from the talkative “men-of-service”
(shi) who conspire with foreign powers to imperil his state.
Every single person around the throne should be suspected; and minimal
negligence can cost a ruler his life and his power. And the most
dangerous foes are precisely those whom other thinkers considered the
ruler’s friends and teachers, namely his closest aides, his
ministers. Han Fei compares them to hungry tigers ready to devour the
sovereign whenever the opportunity arrives:

The Yellow Emperor said: “A hundred battles a day are fought
between the superior and his underlings.” The underlings conceal
their private [interests], trying to test their superior; the superior
employs norms and measures to restrict the underlings. Hence when
norms and measures are established, they are the sovereign’s
treasure; when the cliques and cabals are formed, they are the
minister’s treasure. If the minister does not murder his ruler,
it is because the cliques and cabals are not formed. (Han
Feizi 8: 51)

This is an amazing saying: the minister is, by his nature, deceitful
and murderous, and his failure to eliminate the sovereign is simply a
sign of insufficient preparations, not of unwillingness to do so. The
ministers’ threat to the monarch is inherent in their position,
and it can be defused only through proper implementation of methods
and techniques of rule.

Han Fei’s repeated anti-ministerial philippics perplex the
reader. It is somewhat ironic that a thinker who actively sought
employment in the rulers’ courts presented his own stratum as
intrinsically malicious. As many traditional and modern scholars
noticed, Han Fei’s personal tragedy—he was slandered at
the court of Qin, imprisoned and reportedly forced to commit suicide
before being able to present his views to the King of Qin—was a
by-product of the very atmosphere of the ruler-minister mistrust that
the thinker himself generated. But going beyond this personal tragedy
there is a more general question: how can the ruler maintain his
functions in the situation of permanent danger and absolute mistrust
between him and his aides?

Han Fei’s immediate answer is that the ruler should protect
himself through careful employment of the techniques of government
depicted above. He should check his ministers’ reports,
investigate their performance, promote or demote them according to the
match between “performance” and the “name”; he
should remain calm and secretive and let them expose themselves; he
should encourage mutual spying and denouncement among his ministers.
But this supposedly neat solution is problematic. First, it requires
at times superhuman intellectual abilities of the ruler, in direct
contradiction to Han Fei’s own insistence that his system fits
an “average” (i.e., mediocre) sovereign (Han
Feizi 40: 392). Second, it remains unclear how the ruler will
gain access to reliable information if each of his close
aides—as Han Fei reminds him—is a potential cheater
(Han Feizi 6: 36–37). And third, a system which
requires permanent surveillance of everybody can easily fall into a
trap of totalitarian regimes in which “each agent charged with
inspecting and controlling must logically be subject to inspection and
control himself” (Graziani 2015: 175). Han Fei’s
clear-sightedness with regard to ministerial machinations is
remarkable, but it eventually entraps the sovereign in the nightmarish
situation of comprehensive suspicion and mistrust.

Yet scheming ministers aside, the sovereign should beware of his own
mistakes, which may be even worse than his foes’ plans. The
monarch is the most revered individual, but also the weakest chain in
the government apparatus. He can be duped by his underlings, is prone
to misjudge them, and his actions may frequently endanger the very
foundations of political order that he is supposed to safeguard.
Hence, the thinker repeatedly urges the ruler to refrain from any
personal activities, any reliance on personal knowledge, and any
manifestation of personal likes and dislikes. “He who relies on
personal abilities is the worst ruler”; “When the
sovereign abandons the law and behaves selfishly, there is no
difference between the rulers and the ruled”; “When the
ruler has selfish kindness, the ruled have selfish desires”
(Han Feizi 48: 432; 6: 32; 45: 414 et saepe). The
ruler should refrain from any action; echoing the Laozi
老子, Han Fei urges him to remain empty and tranquil
(Han Feizi 5: 27). The thinker summarizes his
recommendations:

The ruler does not reveal his desires; should he do so, the minister
will carve and embellish them. He does not reveal his views; should he
do so, the minister will use them to present his different [opinion].
… The way of the enlightened sovereign is to let the
knowledgeable completely exhaust their contemplations—then the
ruler relies on them to decide on matters and is not depleted of
knowledge; to let the worthy utilize their talents—then the
ruler relies on them, assigns tasks, and is not depleted of abilities.
When there is success, the ruler possesses a worthy [name]; when there
is failure, the minister bears the responsibility. (Han Feizi
5: 27)

This is a curious recommendation: the ruler should completely nullify
himself both in order to preserve his authority against scheming
ministers, and to acquire—unjustly!—a good name at the
minister’s expense. Yet this sovereign, who has neither desires
nor observable views, becomes the ultimate slave of his office. For
the sake of self-preservation he must abolish his personality, being
completely submerged by the system which he ostensibly runs. A.C.
Graham provocatively notices that the ruler in Han Fei’s system
“has no functions which could not be performed by an elementary
computer. … Might one even say than in Han Fei’s system
it is ministers who do the ruling?” (Graham 1989: 291). This
paradox of an entrapped sovereign, who enjoys God-like omnipotence,
but who is required to refrain from any activism in order to preserve
this omnipotence is one of the most fascinating manifestations of the
intrinsic contradiction of the authoritarian system. When it comes
from a thinker who is often described as singularly
authoritarian-minded, it deserves utmost attention.

In the twentieth century not a few scholars dubbed Legalists
“totalitarians” (e.g., Creel 1953: 135–158; Rubin
1976: 55–88; Fu Zhengyuan 1996). Some of the aspects of the
Legalist program—a powerful state that overwhelms society, rigid
control over the populace and the administrative apparatus, harsh
laws, and the like—seem to lend support to this equation. Yet
when we move to the realm of thought control—a sine qua non for
a true totalitarian polity—the results are somewhat equivocal.
Although Shang Yang and Han Fei have much to say on matters of culture
and learning, their message is predominantly negative: they eagerly
expose the fallacies of their opponents’ views, but do not
necessarily provide an ideological alternative of their own.

Shang Yang is particularly notorious for his comprehensive assault on
traditional culture and on moral values. The Book of Lord
Shang abounds with controversial and highly provocative
statements like this one:

Poems, Documents, rites, music, goodness,
self-cultivation, benevolence, uprightness, argumentativeness,
cleverness: when the state has these ten, superiors cannot induce [the
people] to [engage in] defense and fighting. If the state is ruled
according to these ten, then if the enemy arrives it will surely be
dismembered, and if the enemy does not arrive, the state will surely
be impoverished. If the state eradicates these ten, then the enemy
will not dare arrive, and even if he arrives, he will surely be
repelled; when an army is raised and sent on a campaign, it will
surely seize [the enemy’s land]; whereas if the army is
restrained and does not attack, the state will surely be rich.
(Shang jun shu 3: 23; Book of Lord Shang 3.5)

This and similar pronouncements, as well as the text’s derisive
language (it dubs moral values as “parasites” or
“lice” 蝨), explain why Shang Yang gained notoriety
in the eyes of imperial literati, as well as many modern scholars, as
an enemy of morality. Yet this conclusion should be qualified. The
“alienating rhetoric,” an example of which is cited above,
is concentrated only in a few chapters of the Book of Lord
Shang; most other display more accommodative views toward
traditional moral values; some even promise that “the sage
ruler” would be able to “implement benevolence and
righteousness in All under Heaven” (Shang jun shu 13:
82; Book of Lord Shang 13.6; see also detailed discussion in
Pines 2012). It seems that the text assaults not morality as such but
rather moralizing discourse. It is this discourse—or more
precisely its bearers, the peripatetic “men of service”
who seek employment at the rulers’ courts—which arouse
Shang Yang’s indignation.

Shang Yang deplores traveling intellectuals because they damage the
foundations of his sociopolitical model. By gaining official positions
and emoluments outside the carefully designed system of ranks of
merit, they undermine the people’s commitment to agriculture and
warfare:

When one thousand people are engaged in agriculture and warfare, yet
there is a single man among them engaged in Poems,
Documents, argumentativeness and cleverness, then one
thousand people all will become remiss in agriculture and warfare.
… This is the teaching that impoverishes the state and weakens
the army. (Shang jun shu 3:22–26; Book of Lord
Shang 3.5–3.10)

It is worth noticing that Shang Yang’s dislike of traveling
persuaders is less related to the content of their doctrines but
rather focuses on their negative impact on the people’s
mores. The very fact that talkative intellectuals are being
promoted distracts the people from substantial occupations and causes
them engagement in hollow talk and needless learning. Moreover,
intellectuals, with their sophisticated ideas, destroy the
people’s simple-mindedness (pu 樸), making the
latter less diligent and more difficult to control. Thus, both
economically and politically, learning is harmful: it distracts the
people from their diligent work and diminishes their
submissiveness.

This said, the Book of Lord Shang does speak at times of
“teaching” or “indoctrination” (jiao
教). Yet normally, this term refers not to imposition of a new
set of values, but rather to the internalization of the
government’s regulations, which would allow the people to comply
with the government’s requirements without the need in coercion
(cf. Sanft 2014). In a major discussion of jiao, the text
says:

What is called “unification of teaching” is that …
fathers and elder brothers, minor brothers, acquaintances, relatives
by marriage, and colleagues all say: “What we should be devoted
to is just war and that is all.” … This is what I, your
minister, call “unification of teaching.” … The
people’s desire for riches and nobility stops only when their
coffin is sealed. And [entering] the gates of riches and nobility must
be through military [service]. Therefore, when they hear about war,
the people congratulate each other; whenever they move or rest, drink
or eat, they sing and chant only about war. (Shang jun shu
17: 105; Book of Lord Shang 17.4)

Teaching the people to “sing and chant only about war”
could easily refer to military indoctrination, such as we encounter in
other countries that employed mass armies. Yet the Book of Lord
Shang never speaks of, e.g., adoration of martial spirit,
dehumanization of the enemy, identifying martiality with masculinity,
and similar devices employed in militaristic education elsewhere.
Rather, for Shang Yang and other contributors to “his”
book “teaching” means simply the people’s
internalization of the fact that the only way to satisfy their desires
for riches and glory is to excel in war. Hence war, which elsewhere in
the book is frankly associated with what the people hate (Shang
jun shu 18: 108; Book of Lord Shang 18.2), becomes the
focus of the people’s aspirations. “Teaching” is
then not about ideological indoctrination; it is just about willful
compliance with the government’s policies.

Han Fei’s views of traditional culture and of learning echo
Shang Yang’s, but he is even more vehement in his dislike of
traveling scholars who rise up the sociopolitical ladder by selling
their ideas to the rulers and to high ministers. He repeatedly
ridicules rulers who are fond of argumentativeness and of crafty
words: they employ proponents of mutually exclusive doctrines just out
of admiration of their rhetorical skills, and without any
consideration of the doctrines’ political worth. Han Fei
advises:

Now, when the ruler listens to [a certain] teaching, if he approves of
its doctrine, he should promulgate it among the officials and employ
its adherents; if he disapproves of its doctrine, he should dismiss
its adherents and cut it off. (Han Feizi 50: 459)

This proposal amounts to “nationalization” of intellectual
activity. Han Fei does not deny in principle that some of the rival
doctrines may benefit the state; he just denies their proponents the
right to develop and elaborate their views independently of the state.
Han Fei leaves his rivals no illusions: intellectuals can pursue their
ideas only insofar as they are part of the state-ordained system of
power, otherwise their ideas will be “cut off.” Elsewhere,
he concludes:

Accordingly, in the country of an enlightened ruler there are no texts
written in books and on bamboo strips, but the law is the teaching;
there are no “speeches” of the former kings, but officials
are the teachers; there is no private wielding of swords, but
beheading [enemies] is valor. (Han Feizi 49: 452)

Han Fei’s suggestion to eliminate “texts written in books
and on bamboo strips” and to turn officials into teachers was
implemented by his fellow student and nemesis, Li Si, soon after the
imperial unification of 221 BCE. In 213 BCE, after heated court
debates, Li Si launched a comprehensive assault on “private
learning,” which he identified as intellectually divisive and
politically subversive. He then suggested eliminating copies of the
canonical books of Poems and Documents, as well as
Speeches of the Hundred Schools [of thought] from private
collections, leaving copies only in the possession of the court
erudites (bo shi 博士). Li Si concluded his
proposal by echoing Han Fei’s views: “And those who want
to study laws and ordinances, let them take an official as a
teacher!” (Shiji 87: 2546; Watson 1993: 185).

Li Si’s assault on private learning is often misinterpreted as
the victory of “Legalist” over “Confucian”
ideology, but this is wrong. Confucianism as such was not targeted;
actually, it prospered among the court erudites (Kern 2000:
188–191). What mattered to Li Si—as to Han Fei—was
not doctrinal unity as such, but the imposition of the state control
over intellectual life, as in all other spheres of social activity.
Intellectuals were not persecuted because of the content of their
ideas; but they were required either to enter government service or to
quit their pursuits. Eventually, Li Si’s biblioclasm backfired.
It caused not only considerable resentment in the short term, but,
more ominously, brought about immense dislike of Qin—and of
Legalism—among the overwhelming majority of the imperial
literati for millennia to come (Pines 2014a).

Qin unification of 221 BCE could have become the triumph of Legalism.
The rise of the state of Qin started with Shang Yang; and it was by
following his “agriculture cum warfare” course of action
that this state became rich and powerful enough to subdue its
formidable enemies. Many aspects of Qin’s policy before the
imperial unification and in its aftermath—such as the creation
of an intrusive government apparatus, tight supervision over
officials, reliance on impartial laws and regulations, and the
like—were designed by Shang Yang, Shen Buhai, Han Fei, and their
like. And these policies brought about unprecedented success: after
five centuries of unending warfare, the entire realm “under
Heaven” was unified under a single ruler! Proud of his success,
the First Emperor (emp. 221–210 BCE) toured his newly acquired
empire, erecting stone steles on the sites of sacred mountains. In the
stele inscriptions he boasted of bringing unity, peace, stability, and
orderly rule (Kern 2000; Pines 2014b). Dreams of generations of
preimperial thinkers were realized, and this was done primarily
through following the recipes of those whom we dub today
“Legalists.”

Yet history was cruel to the Legalists. The Qin dynasty (221–207
BCE), which was designed to rule for “myriad generations”
(Shiji 6: 236), collapsed shortly after the founder’s
death, brought down by a popular rebellion of unprecedented scope and
ferocity. This swift collapse—which took place just a few years
after Li Si’s infamous biblioclasm—shaped the image of Qin
for millennia to come. The dynasty was no longer a success story, but
rather that of miserable failure; and the ideas which guided its
policymakers were discredited as well. Already in the first
generations after the Qin, consensus was reached: its collapse was due
to excessive activism, abnormal assertiveness of its administrative
apparatus, over-reliance on penalties, senseless expansionism, and
debilitating mistrust between the emperors and their entourage (Jia Yi
賈誼 [200–168 BCE] as cited in Shiji 6:
276–284; Xin yu 4: 62). All these policies could be
meaningfully attributed to the Legalists, whose intellectual legacy
was as a result discredited. At best it was reduced to Sima
Tan’s assessment: “a one-time policy that could not be
constantly applied.”

The diminishing appeal of Legalism became fully visible under the
reign of Emperor Wu of the Han (r. 141–87 BCE). Although the
Emperor himself adopted assertive domestic and foreign policies
largely patterned after the Qin dynasty, he considered it prudent to
distance himself from the Qin and Legalism, and to
endorse—however superficially—Confucianism. It was during
his reign that first proposals were made to ban the followers of Shang
Yang, Shen Buhai, and Han Fei from holding office. Although in the
short term these proposals had limited consequences (Shang
Yang’s legacy was still openly defended by the government
representative during the court debates in 81 BCE), in the long term
the attitude toward Legalists changed. Few scholars studied their
writings; even fewer were courageous enough to endorse their legacy
openly. Much like Qin itself (for which see Pines 2014a), Legalism
henceforth became a negative label, associated with the policies
immensely opposed by the majority of imperial literati: excessive
harshness, oppression, terror at court, imperial hubris, and the like.
Self-identification as a follower of Shang Yang or Han Fei became a
rarity, if not an impossibility.

In imperial times, the position of Legalism was somewhat paradoxical.
On the one hand, its ideas remained highly influential, especially in
the realm of administrative practice, but also with regard to the
policies of the enrichment and empowerment of the state, as well as in
some legal practices. On certain occasions, some of the leading
imperial reformers—from Zhuge Liang 諸葛亮
(181–234) to Su Chuo 蘇綽 (498–546), from Wang
Anshi 王安石 (1021–1086) to Zhang Juzheng
張居正 (1525–1582)—could openly
acknowledge their indebtedness to the Legalist ways of reinvigorating
the government apparatus and restoring the state’s economic and
military prowess. On the other hand, most political reformers and
activists remained closet Legalists at best. For the vast majority of
the literati, Shang Yang, Han Fei, and their like were negative
examples; hence, most of the texts associated with the Legalist school
ceased circulating, and only a very few merited commentaries. Overt
endorsement of Shang Yang, for instance, would be all but impossible
for a respected man of letters.

It was only at the turn of the twentieth century that Legalism was
rediscovered and partly rehabilitated by the new generations of
intellectuals. Frustrated by China’s inability to reconstitute
itself in a modern world as a “powerful state with a strong
army,” young intellectuals began searching for a variety of
non-traditional responses to domestic and external challenges; among
these, some turned toward Legalism. It was deemed relevant not only
because it had demonstrable practical achievements in the past, but
also because of its innovativeness, willingness to depart from the
patterns of the past, and even its quasi-scientific outlook. For
instance, the first major promulgator of interest in Shang
Yang’s thought, Mai Menghua 麥夢華
(1874–1915), was positively attracted by the surprising
similarity between Shang Yang’s views of history and
evolutionary ideas of Occidental social theorists; and he further
identified in the Book of Lord Shang parallels to the Western
ideas of imperialism, nationalism, statism (guojiazhuyi
國家主義), and even the rule of law (Li Yu-ning 1977: lviii-lix).
Even such a major liberal thinker as Hu Shi 胡適
(1891–1962) was willing to forgive the Legalists their notorious
harshness and oppressiveness, hailing Han Fei and Li Si for their
“brave spirit of opposing those who ‘do not make the
present into their teacher but learn from the past’” (Hu
Shi 1930: 6.480–81). Slightly later, it was no less a figure
than Hu Hanmin 胡漢民 (1879–1936), one of the
most eminent Guomindang 國民黨 (Kuomintang, KMT,
“Party of the Nation”) leaders, who wrote a preface to a
new edition of the Book of Lord Shang (Hu Hanmin 1933).

The endorsement of Legalism peaked under Mao Zedong
毛澤東 (1893–1976). Mao’s intellectual
activism started, incidentally, with a high-school essay written in
praise of Shang Yang (Schram 1992–2004, Vol. 1: 5–6), and
his positive view of Shang Yang and of the Qin dynasty strengthened as
time passed. In the last years of Mao’s life, under the infamous
“anti-Confucian” campaign, Legalism was openly endorsed
and hailed as “progressive” intellectual current both in
its outlook and its historical role (Li Yu-ning 1977); attempts were
even made to position it as a direct predecessor of Mao Zedong’s
Thought (see, e.g., Liu Zehua 2012).

After Mao’s death, this grotesque politicization of Legalism
discontinued. While in the 1980s Legalism still could surface in
China’s intellectual debates about paths that the country needed
to take, and while echoes of Chinese polemics could be heard in the
West as recently as the 1990s (Fu Zhengyuan 1996), this “usage
of the past to criticize the present” gradually receded (Pines
and Defoort 2016). With it, studies of Legalist thought receded as
well, especially in the West and in Japan, but to a certain extent
also in China. Most recently, this trend is changing, and the academic
community is rediscovering the richness of Legalist thought. Without
excessive endorsement or disparagement, scholars can investigate this
set of ideas, which was highly effective in the context of the Warring
States period, but proved less applicable to other historical
circumstances.

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Acknowledgments

This research was supported by the Israel Science Foundation (grant
No. 511/11) and by the Michael William Lipson Chair in Chinese
Studies. I am indebted to Paul R. Goldin for his insightful comments
on the early version of this article.